1. Plaintiff Rudolph Hildebrandt challenges an Administrative Law Judge's ("ALJ") determination that he is not entitled to a period of disability insurance benefits ("DIB") or eligibility for supplemental security income benefits ("SSI") under the Social Security Act ("the Act"). Plaintiff alleges he has been disabled since December 15, 1989, because of an injury to his right arm.
2. Plaintiff filed an application for DIB on April 28, 1993, alleging he was disabled because of an injury to the biceps of his right arm. This application was initially denied, and there is no record of a request for reconsideration. Plaintiff filed applications for DIB and SSI on February 24, 1998, again alleging disability since December 15, 1989, because of an injury to his right arm. His application was denied initially and upon reconsideration. Pursuant to Plaintiff's request, an administrative hearing was held on October 14, 1999, before ALJ Carl E. Stephan, at which time Plaintiff and his attorney appeared. The ALJ considered the case de novo, and on February 15, 2000, issued a decision finding that the Plaintiff was not disabled. Plaintiff requested review of the ALJ's decision by the Appeals Council, and by Order dated October 25, 2002, the Appeals Council vacated the hearing decision. The case was remanded for further administrative proceedings regarding whether or not Plaintiff was disabled within the time frame from his alleged onset of disability on December 15, 1989, through the date he was ultimately granted SSI benefits in April 2002, retroactive to March 2000, after he had made subsequent application following his denial of benefits on February 15, 2000. On February 24, 2004, Plaintiff and his attorney again appeared at a hearing before ALJ Stephan. A vocational expert also testified. The ALJ considered the case again, and on April 14, 2004, issued a decision finding that Plaintiff was not disabled at any time during the relevant time frame from December 15, 1989, through March 2000. Plaintiff timely requested review of the ALJ's decision by the Appeals Council, and on December 19, 2005, the Appeals Council denied Plaintiff's request for review.
3. On February 6, 2006, Plaintiff filed a Civil Complaint challenging Defendant's final decision and requesting the Court review the decision of the ALJ pursuant to Section 205(g) and 1631(c) (3) of the Act, modify the decision of Defendant, and grant DIB and SSI benefits to Plaintiff.*fn1 The Defendant filed an answer to Plaintiff's complaint on June 14, 2006, requesting that the Court dismiss Plaintiff's complaint. Plaintiff submitted a Plaintiff's Brief requesting the Court set aside the Commissioner's decision and award benefits to Plaintiff on September 28, 2006. On November 8, 2006, Defendant filed a Memorandum of Law in Support of the Defendant's Motion for Judgment on the Pleadings*fn2 pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. After full briefing, this Court deemed oral argument unnecessary and took the motions under advisement.
Legal Standards and Scope of Review:
4. A court reviewing a denial of disability benefits may not determine de novo whether an individual is disabled. See 42 U.S.C. § 405(g), 1383 (c)(3); Wagner v. Sec'y of Health and Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner's determination will only be reversed if it is not supported by substantial evidence or there has been a legal error. See Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). "Substantial evidence" is evidence that amounts to "more than a mere scintilla," and it has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed. 2d 842 (1971). Where evidence is deemed susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
5. "To determine on appeal whether the ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Williams on Behalf of Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by substantial evidence, the Commissioner's finding must be sustained "even where substantial evidence may support the plaintiff and despite that the court's independent analysis of the evidence may differ from the [Commissioner's]." Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992). In other words, this Court must afford the Commissioner's determination considerable deference, and may not substitute "its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review." Valente v. Sec'y of Health and Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
6. The Commissioner has established a five-step sequential evaluation process to determine whether an individual is disabled as defined under the Social Security Act. See 20 C.F.R. § 404.1520, 416.920. The United States Supreme Court recognized the validity of this analysis in Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S.Ct. 2287, 2291, 96 L.Ed. 2d 119 (1987), and it remains the proper approach for analyzing whether a claimant is disabled.
7. This five-step process is detailed below:
First, the [Commissioner] considers whether the claimant is currently engaged substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work active-ties. If the claimant has such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience; the [Commissioner] presumes that a claimant who is afflicted with a "listed" impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant could perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam); see also Rosa v. Callahan, 168 F.3d 72,77 (2d Cir. 1999); 20 C.F.R. § 404.1520.
8. While the claimant has the burden of proof as to the first four steps, the Commissioner has the burden of proof on the fifth and final step. See Bowen, 482 U.S. at 146 n.5; Ferraris v. Heckler, 728 F.2d 582 (2d Cir. 1984). The final step of this inquiry is, in turn, divided into two parts. First, the Commissioner must assess the claimant's job qualifications by considering his physical ability, age, education, and work experience. Second, the Commissioner must determine whether jobs exist in the national economy that a person having the claimant's qualifications could perform. See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1520(f); Heckler v. Campbell, 461 U.S. 458, 460, 103 S.Ct. 1952, 1954, 76 L.Ed. 2d 66 (1983).
9. In this case, the ALJ made the following findings with regard to factual information as well as the five-step process set forth above: (1) Plaintiff met the non-disability requirements for a period of disability and Disability Insurance Benefits set forth in Section 216(1) of the Social Security Act and is insured for benefits through the date of this decision (R. at 24)*fn3 ; (2) Plaintiff has not engaged in substantial gainful activity since the alleged onset of disability (R. at 24); (3) Plaintiff's ruptured biceps tendon of the right dominant upper extremity is a "severe" impairment, based upon the requirements of the Regulations (20 C.F.R §§ 404.1520 and 416.920) (R. at 24); (4) This medically determinable impairment does not meet or medically equal one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4 (R. at 24); (5) The ALJ found the Plaintiff's allegations regarding his limitations not totally credible for the reasons set forth in the body of the decision (R. at 24); (6) Plaintiff has the residual functional capacity to perform simple, medium work that does not require the ability to read, has no limitations with standing, sitting, walking, and requires only occasional repetitive use of the right upper extremity, and no overhead lifting with the right upper extremity (R. at 25); (7) Plaintiff is unable to perform any of his past relevant work (20 C.F.R §§ 404.1565 and 416.965) (R. at 25); (8) Plaintiff is an "individual of advanced age" (20 C.F.R. §§ 404.1563 and 416.963) (R. at 25);*fn4 (9) Plaintiff has a "marginal education" (20 C.F.R. §§ 404.1564 and 416.964) (R. at 25); (10) Plaintiff has no transferable skills from any past relevant work and transferability of skills is not an issue in this case (20 C.F.R. §§ 404.1568 and 416.968) (R. at 25); (11) Plaintiff has the residual functional capacity to perform a significant range of medium work (20 C.F.R. §§ 404.1567 and 416.967) (R. at 25); and (12) Although Plaintiff's exertional limitations do not allow him to perform the full range of medium work, using the Medical-Vocational Rule 203.11 as a framework for decision-making, there are a significant number of jobs in the national economy that Plaintiff could perform. Examples of such jobs include work as a dishwasher, vehicle worker, and laundry worker (R. at 25). Accordingly, the ALJ determined Plaintiff was not entitled to a period of disability, Disability Insurance Benefits, or supplemental security income payments under Sections 216(i), 223, 1602 and 1614(a)(3)(A), respectively, of the Social Security Act (R. at 25).
10. Plaintiff challenges the ALJ's determination that Plaintiff is not disabled and asserts the ALJ's decision is not supported by the substantial evidence of record. Specifically Plaintiff alleges that (1) the ALJ ignored the assessment of Plaintiff's treating physician with regard to Plaintiff's limitations and his residual functional capacity to perform the requirements of medium work*fn5 , and (2) the vocational expert who testified at Plaintiff's hearing took an unreasonable position with regard to Plaintiff's ability to perform substantial gainful activity. Further, Plaintiff alleges the Appeals Council erred by failing to remand the case for further administrative proceedings because (3) the ALJ relied partially on the opinion of a State agency physician that Plaintiff had no handicap, disability or impairment, and (4) the ALJ ignored the opinion by a State agency examining psychologist that Plaintiff is dyslexic. The Court will address each of Plaintiff's allegations in sequence.
ALJ Ignored the Assessment of Plaintiff's Treating Physician:
11. Plaintiff's first challenge to the ALJ's decision is that he ignored the assessment of Plaintiff's treating physician with regard to Plaintiff's residual functional capacity to perform the demands of medium work on a sustained basis. See Plaintiff's Brief, p. 1, 4-8. Specifically, Plaintiff claims the ALJ relied on the opinion of a non-examining, non-treating physician when making his determination that Plaintiff was not disabled during the time frame relevant to his claim, and gave no consideration to the opinion of Plaintiff's treating physician that Plaintiff had both exertional and non-exertional limitations that would preclude him from performing the demands of medium work. The Court disagrees with Plaintiff's contention as discussed below.
On September 5, 1985, Plaintiff injured his right bicep in a construction accident (R. at 18, 56-57). Plaintiff was examined by Dr. John Kavanaugh on September 6, 1985, who diagnosed "at least a partial and perhaps a complete tear of the distal aspect of the biceps tendon" (R. at 162). Dr. Kavanaugh recommended surgery as the best treatment for Plaintiff to regain strength in the arm. Id. The doctor also offered Plaintiff a conservative, non-surgical treatment as an option that would be effective to relieve his pain, but would be less likely to help Plaintiff regain his strength.
Plaintiff was next examined by Dr. John Pastore on October 30, 1985, who diagnosed a rupture of Plaintiff's biceps tendon insertion (R. at 158-159). Dr. Pastore recommended Plaintiff continue with a program of rest and range of motion exercises, and opined Plaintiff had a ...